Thompson v. Runnel

(1964)(“Rule 15(d) ... plainly filing. alleges Rhodes’ SAC that he did this, permits supplemental nothing amendments cov and there is in the record to suit....”); contrary. after The district happening er events Wil court therefore Baking dismissing v. ITT erred in Inglis liam & Sons Co. claims thirteen Co., 1014, 1057 through thirty-three Baking Cont'l as unexhausted under Cir.1982) (“The 15(d) the PLRA. purpose of Rule is to

promote complete adjudication as say This is not to defendants cannot dispute parties possible between the as question on remand the veracity of allowing the addition of claims which arise allegations Rhodes’ of exhaustion. We filed.”). pleadings the initial are have, make no that the claims precisely Rhodes’ SAC fits within the lan fact, been exhausted. 15(d) guage purpose and of Rule aas reasons, For the foregoing portion supplemental pleading based on facts the district court’s order dismissing claims filing of the original occurred after through thirty-three thirteen of the SAC is The district complaint. interpreta court’s reversed and the case remanded to the require tion of the PLRA’s exhaustion district court proceedings. further McKinney necessarily ment —and im — party Each shall bear his own costs on 15(d) plies supplemental that Rule appeal. apply pleadings do actions under the part REVERSED in and REMAND- PLRA. A supplemental complaint alleging ED. new, newly-exhausted, claims could

never be filed a PLRA action. Con indicated, however,

gress has never that it 15(d) away

intended to do with Rule

supplemental pleadings PLRA actions.

And, noted, as we have the Court has

expressly reminded us that “when Con gress depart pro meant to from the usual THOMPSON, Antwion E. cedural it requirement, expressly.” did so Petitioner-Appellant, Jones, S.Ct. 910.

We hold that the district court erred through when dismissed claims thirteen RUNNEL, Warden, Respondents- D.L. thirty-three of Rhodes’ SAC under Appellees. § 1997e. This result necessary is to har- No. 08-16186.

monize the PLRA requirements with the Procedure, Federal Rules of Civil as Appeals, United States Court instructed; Court has it is Ninth Circuit. also consistent with our holdings Vaden Argued and Submitted Feb. 2010. and McKinney. Sept.

Filed Conclusion

The PLRA’s requirement exhaustion long

satisfied so as Rhodes exhausted his

administrative respect remedies with

the new claims asserted in before his SAC court complaint tendered Bradley O’Connell,

J. Ap- First District Project, Francisco, CA, pellate San for the appellant. Brown,

Edmund G. Gerald Engler, A. Peggy S. Ruffra and Sharon G. Birenb- aum, Office of the Attorney General of California, Francisco, CA, San ap- for the pellees. GOODWIN,

Before: ALFRED T. MARSHA S. BERZON and SANDRA S. IKUTA, Judges. Circuit Opinion by BERZON; Judge Dissent Judge IKUTA.

BERZON, go that he home Judge: sponded wanted Circuit sleep. Conaty explained When warnings, given he was Before critical Thompson’s assistance could be killing Antwion confessed investigation, agreed to go once again He then confessed girlfriend. placed to the station. was not rights. He properly advised of his he was under arrest that time. jury by a California of first- was convicted murder, personal degree mayhem, and at the When arrived station deadly weapon use. Before the California room, in a placed where he was break proceed- courts and this federal habeas hours. approximately waited six Officer that at trial he maintains the admission ing sat room doing Solzman outside break privilege confession violated the of his paperwork. Thompson’s father testified self-incrimination, the in- against because to speak that he asked to his son but was vestigating deliberately withheld officers refused; that police witness denied there had con- until after he request. such crime. court fessed to the The district p.m., Inspectors Around 11:00 Conaty petition. reverse. denied We Thompson and Giacomelli moved into an room three chairs containing interview and I. Thompson no other furniture. was not Bivins, Thompson’s girl- Arie sometime go home, and to handcuffed did not ask friend, was 1:30 and murdered between then, but, by Conaty considered him “the p.m. on June 4:30 1998. Bivins was primary suspect.” ensuing The two-hour seventeen, Thompson eighteen. In the was videotaped. interview days months, preceding and Bivins had break attempted up Thompson, to with outset, Conaty Thompson At the told violent him. prompting reactions from that the interview could conducted an- be Thompson other time event too murder, day of the On it. No tired to do talking Thompson father saw and Bivins Thompson given. agreed to talk about the p.m. Thompson outside his house 1:30 gave incident and an initial account 2:00, saying left his father’s house at not day prompting activities that with little 3:00, going. dog he was At where about that Thompson the officers. insisted he yard next to Bivins’ house barked go to did Bivins’ house between 10:30 ferociously. Thompson home at returned p.m. a.m. and 4:00 4:00, father told his he was worried about Bivins, had his him to father drive of the interrogation The tone then be- There, Bi- Thompson Bivins’ home. found came more confrontational: The officers vins’ front door unlocked and her dead eyewitness put invented an account that just body inside door. Thompson at around Bivins’ house 2:30 arrived, police ap- p.m. pressed Thompson explain

When to distraught. ap- peared apparent Officer Solzman contradiction. sug- Thompson, proached gested got who said he did witness time Thomp- wrong, forcefully disagreed: feel well. Solzman offered to let but Conaty “No, no, in the son lie down air-conditioned no bro. we’ve Eight hours been car, Later, talking homi- Thompson agreed. up people. there to these I’ve Conaty very cide detective woke to clear about been with them what him to the to talk go talking you’ve got ask station about.... we’re Now finding the re- with body. Thompson help thing.” Inspector about me out As trial, stabbing her in the during this fabricated and to chest Conaty testified altercation, although he account was one of several insisted he eyewitness accidentally. response and Giacomelli em- did so to further techniques he “keepfing] questions, Thompson then purpose upon for the elaborated ployed “havfing] the defen- going” and details altercation and the loca- interview weapon at the location.” tion of the murder and his blood- place [himself] dant clothing. Conaty ied When asked breakthrough occurred when “getting son whether he felt better after Thompson to again get officers tried chest,” Thompson repeated all off [his] in the that he had been to the house admit to, to, that he wanted and intended commit afternoon, early suggesting this time suicide. Thompson had lied earlier because was said, seared, “understandable,” they point, Conaty At this told Thompson youth.1 Thompson thereupon of his light that the decision about what happen would into tears and said he went alone to broke next would up p.m. around 2:00 where he Bivins’ house Attorney. District Asked after that for told the offi- Thompson found her dead.2 more details about the incident—still with kill he was scared and wanted to cers no Miranda warnings Thompson gave a — himself. yet more detailed account of the alterca- living response tion Bivins’ room. to No Miranda warnings yet had been ad- specific questioning about who held the ministered, interrogation but the contin- knife, Thompson admitted that Bivins nev- Thompson again, ued. The officers told — Recounting er wielded it. the altercation falsely they “high-velocity had found —that more, once stabbing admitted to her spatter” blood on brown shirt left his slitting and her throat after she had col- fingerprint bedroom and his blood on lapsed on the floor. The officers asked living Citing chair in Bivins’ room. this questions several more about Thompson’s proof Thompson “evidence” as was doing trip intent in so and his about home occurred, a fight the scene and that afterwards. Thompson, told makes or officers “What thing out for breaks this for how comes Only interrogating then did the officers you is to tell us what the circumstances that Miranda provide speci- your one chance to do [T]his

were.... Arizona, fies. See Miranda v. that.” 436, 444-45, (1966). bait, so, they Taking Having Thomp- abandoned done took story already through day’s that Bivins was dead son back events. When Thompson reported he arrived at her house in the after- that he slit Bivins’ when prevent suffering, noon.3 He admitted to her alive throat her from Co- too, admitted, 1. the officers later was a Court observed v. This in State technique during pre-Miranda employed "[interrogators taught procuring are interrogation phase of the to induce first admission” —"no matter how small”— minimizing incriminate son to "usually himself— leads to full confession.” Thompson's moral blameworthiness of con- (Mo.2002) (citing S.W.3d Arthur S. duct. Aubry, Rudolph Caputo, Jr. & R. Criminal (1980)). Interrogation 290 When, by technique, this the officers suc- inducing Thompson ceeded in to admit that found, 3.By point, the state trial court house, they gone he had alone to Bivins' interrogation had become custodial. "breakthrough.” their first As the Missouri but that the pre-Mi- interrogation interroga- him based on a naty corrected “That, tion became custodial sometime after you randa warning admission: and visiting Bivins’ admitted necessarily and didn’t her to survive want house before he conceded that he alone but right?” tell on isn’t that The officers you, found her there alive. The trial court repeatedly previous referred back made suppressed the statements after the Thompson recapitulated as conversation interrogation custodial became and before his account. administered. a.m., after 1:00 after receiv- Some time But the post- court admitted warnings, Thompson ing the Miranda confession and videotaped interview, that he saying asked to end reenactment of the crime. to lie But needed down. sleepy was trial, At convicted continued with a few more the interview murder, first-degree Cal.Penal Code questions. The officers then handcuffed personal § § mayhem, dead him telling without that he was Thompson, 12022(b)(1). ly weapon use, § His sen arrest, and, a.m., around took under 2:00 years to life twenty-six pris tence him weapon to look for the murder on. clothing Only he had burned. jail. court, excursion was booked into appellate deciding state 3, 2004, night February He the rest of the shackled to spent appeal Oregon cell, safety in a on suicide watch. relied on floor (1985), Stripped to his underwear and without conclude made a knowing blankets, Thompson bed unable to rights and voluntary waiver of his once he sleep. Miranda given warnings, even though At jail morning Inspectors the next had a non-Mir during first confessed Conaty and Giacomelli re-advised andized interrogation. custodial The Cali lunch, son of his Miranda rights. After summarily fornia Supreme Court denied in a re- Thompson participated videotaped 21, review on 2004. The April United of the crime at house. enactment Bivins’ for the States District Court Northern trial, Thompson sup- Before moved to District of California denied press all of the statements he had made petition, habeas affirming the state court during interrogations and reenactment that all of determination state 22 After a June and 23. brief evidentia- voluntary citing ments were lack of ry trial hearing, state court first ad- evidence that the use of deliberate “two- the “custodial” prerequisite step” interrogations dressed was an policy official requirement,4 determining police department.5 timely of the This custody appeal not in Thompson was at the outset followed. 318, California, Stansbury deliberately v. See 511 U.S. this case withheld their Mi- 322, 1526, (1994). 128 114 S.Ct. L.Ed.2d 293 randa advisement until Petitioner had in- Moreover, criminated himself. unlike the stopped deciding

5. The district court short of Seibert, defendant in Petitioner was not un- two-step interrogation whether the was a de- questioning by der at the time of arrest Instead, liberate tactic in this instance. inspectors. no There is evidence in the as follows: court reasoned concerning police policy record an official withholding deliberately warn- This Court notes that Petitioner does not ings suspect confessed. present any until a has In con- cite to the record or evidence Seibert, support inspectors of his assertion that the trast officers in

1013 II. speeific guarantee, federal constitutional as well aas statement of the facts enti- Thompson’s petition was filed Because Netherland, to relief.” Gray tle[d him] v. after the effective date of the Anti-Terror- 152, 162-63, 2074, 518 U.S. 116 S.Ct. Penalty Effective Death Act ism and (1996). (“AEDPA”) rejected claims and his by the state courts a decision on the require satisfied this merits, may grant only relief if the last we petition ment. In his for review to the “was on an reasoned state decision ‘based Court, Supreme California Thompson ar determination of the facts in unreasonable gued that his postwarning statements were ” evidence,’ legal or on a deter- light Arizona, inadmissible under Miranda v. “ to, ‘contrary that was or in- mination 384 U.S. 16 L.Ed.2d 694 of, (1966), application an unreasonable though volved “even he made them after law, clearly inspectors belatedly established Federal as deter- advised him of his ” Supreme rights.... Thompson attempted mined Court of the United to distin ” guish v. Kennedy Lockyer, Oregon v. States.’ Cir.2004) (1985) (9th (quoting L.Ed.2d —which 2254). approved § admission of a warned U.S.C. though confession even the Miranda ad We review the district court’s denial of preceded by visement was an unwarned novo, petition except habeas de confession—on the ground that deliberate findings district court’s fact are re- misconduct his case warranted a viewed for clear error. McClure approach. stricter Specifically, he noted Thompson, 323 F.3d Cir. that the recently Court had 2003). argument heard in Missouri v. A. (2004). case, In that Thompson pointed adequately Unless exhausted in the Cali- out, the Missouri Supreme sup Court had courts, fornia Thompson’s challenge state pressed postwarning statements because to post-Mi- the admission at trial of his “police purposefully withheld Miranda cognizable randa statements is not on ha- warnings to obtain the defendant’s break 2254(b)(1). § beas. 28 U.S.C. California through Thompson argued admission.” argues that to challenge “very that his a was similar” case to Sei admission of his confession is unexhausted both, maintained, In bert: he “the detec may and so we not entertain it. deliberately tives withheld Miranda ad A petitioner satisfies “the exhaus until appellant visements after admitted he requirement tion if ... ‘fairly pre holding he has was the knife when the victim was added.) highest sented’ his federal claim to (Emphasis stabbed.” Thomp jurisdiction state court with to consider petition by urging son’s concluded the Cal Zenon, it....” Johnson v. Supreme 88 F.3d 829 ifornia “grant Court to review to (9th Cir.1996) (quoting clarify Anderson v. Har application of the fruit of the less, 4, 6, poisonous tree in doctrine the Miranda (1982)). so, To do context under the forthcoming opinion by Court, required was to “include reference to a Supreme the U.S. or appel- transfer stances, inspectors testify they appellate analysis here did not the state court's ap- withheld Miranda until after Peti- under Elstad was not an unreasonable plication tioner confessed. Under these circum- of the law. unlikely proposition For this lant’s case to the Court California [California] California, relies on Blair v. to the new Appeal apply with directions (9th Cir.1965). Blair, In the habeas Supreme rule to be stated the U.S. petitioner argued to the California Su forthcoming opinion.” Court its preme petition Court his 1961 for review fairly to the presented thus deprivation of counsel on direct only Supreme Court California Constitution, appeal violated the federal claim—that admission of of his substance petition In and the was denied. violated the Fifth Amend- statements Supreme right Court endowed the to appeal counsel on with federal constitu very argument same ment —but protection Doug tional for the first time in makes on federal habeas. The he now California, v. las 372 U.S. that, only appear, difference is as will (1963). 9 L.Ed.2d 811 Blah- Thompson’s position adopted has now been sought light federal habeas relief in Supreme the U.S. Court. Douglas. response to Blair’s federal Despite clarity Thompson’s posi- then, petition, argued California as it does Court, Supreme tion in the California Cali- now, that the claim was unexhausted. We fornia nonetheless contends that the emer- agreed, stating, gence Supreme authority— of new Court general The issue as to Blair’s constitu 600, 609, 124 Missouri v. right tional appeal to counsel on his (2004) 5.Ct. Appeal California District Court of —in presented to that court and decided support Thompson’s position renders his adversely particularized to him. But the claim According unexhausted. which Blair issue now raises is whether state, once Seibert was decided and even ruling light is correct though expressly asked California subsequently-decided Douglas v. Cali Supreme apply precedent Court fornia. case, pending from the Seibert Blair, 340 F.2d at 744.6 required petition file another right lose the to come to federal court on requirement The of re-exhaustion the issue on habeas. imposed expressly premised, Blair was Subsequent opportunity pass decisions have narrowed Blair. on the claim under the Pope Haiper rejected application particular its to a authorities advanced in the federal Court, court.”). Thompson's: situation similar to The state habeas Pope, Pope courts in conducted a characterized Blair as a narrow rule harmless error applies analysis that to the rare Chapman without the benefit of v. case where "an inter- 18, 824, vening change California, legal in federal law cast the 386 U.S. 87 S.Ct. 17 (1967), fundamentally light....” a issue in different L.Ed.2d 705 decided after the Califor- Connor, 270, 276, Picard v. 404 Supreme U.S. 92 S.Ct. Harper’s petition nia Court denied 509, (1971). 30 L.Ed.2d 438 Cir.1969). for review. 407 F.2d 1303 is, indeed, Harper The federal district court ordered question There some whether the return to state court to allow Teague for reconsidera- Blair rule remains viable at all after Lane, light Chapman. tion in of Id. at 1304-05. 489 U.S. 103 reversed, (1989). concluding inappli- We Curry that Blair is Butler v. declared unnecessary Teague, intervening change cable and re-exhaustion when "[a]fter in any intervening change legal in federal law con- federal law that a casts issue in only fundamentally light cerns "narrow issue controlled es- different is a 'new rule' 1305; principles.” applied tablished at federal Id. see that cannot be on collateral review Rushen, circumstances, any regardless also Hudson v. 830 under of (9th Cir.1982) (“[E]xhaustion petitioner of remedies whether the exhausted state has his words, require Teag- does not that the have had the state court remedies. In other

1015 court, “judg- fully explained to the state where fact that the state part, in on the to the decision that court elected to decide the issue with- prior ... final ment became authority forthcoming at 744. reasoned the benefit of Id. We out Douglas.” in situation, had an that, brought the state to its attention. in that that was in the first instance on passing in interest Moreover, although Elstad did not re- Douglas whether should question quire adoption Thompson’s legal of Id. retrospectively. applied argument validity about the of confessions contrast, conviction, by did deliberately are where final until after Seibert was not become delayed, precluded in Elstad nothing decided, period when Supreme accepting California Court from Supreme Court for certio petition the U.S. position, even before the U.S. Su- Bohlen, Caspari v. 510 elapsed. rari See in The Mis- preme opinion Court Seibert. 383, 390, 114 S.Ct. 127 L.Ed.2d U.S. Supreme already Court had done so souri States, (1994); Clay also v. United see itself, 706-07, Seibert S.W.3d 522, 527, 1072, 155 537 U.S. opinions in Supreme the U.S. Court Sei- (2003) “long- (adhering L.Ed.2d delay bert made clear that the deliberate meaning” finality of artic recognized, clear fully compatible rule is with Elstad. See judg Caspari deciding when ulated 614, 124 (plurality S.Ct. 2601 pur final for of conviction becomes ment (“[T]he op.) argument ap- Elstad [that AEDPA, poses provision of a different proved question-first strategy] disfigures 2255). importantly, § More U.S.C. ease.”); 124 S.Ct. 2601 id. requested Thompson expressly (“Elstad J., concurring) (Kennedy, Supreme apply Court Seibert California result.”). reasoning and its correct its *, review, by delaying either petition not such a fun- Accordingly, Seibert was by remanding to the state decision or damentally rule that we should re- new Blair, So, unlike in Appeals. Court quire legal position reexhaustion of a al- forgo opportunity chose to state courts ready fully presented to the state court. position in evaluate a well-articulated considerations, we decline Given all these light then-pending, of a soon-to-be-decided rule to the circumstances to extend Blair's case. The interests Court Thompson’s petition. comity judicial efficiency underlying on federal ha- requirement the exhaustion B. Greer, beas, Granberry v. see Thomp turn to the merits of We claim, (1987), by the Su by requiring governed son’s Miranda are little served claims, in Seibert.7 542 already preme Court’s decision petitioner to re-exhaust his ue, largely indeed longer fication for the Blair rule was no serves function.” [Blair] by Teague. (9th Cir.2008). obviated en- F.3d This Teague Blair after is a bit of an tombment of argue that 7. We note that California does not illustrates, overstatement. As this case there after Thompson’s reliance on decided Teague of in which is not is a small set cases Supreme denied California Court the pending on triggered because the casé is still period the petition for review but before son’s pertinent Supreme appeal Court direct but petition with the U.S. to file a for certiorari courts have decision issues after the state expired, precluded by Supreme is Court completed their consideration of the case. non-retroactivity Cali- under AEDPA. rule of stated, Still, likely citing briefing the number of such instances is in this court fornia’s small, opinion the Court indicating justi- for exceedingly that the Justice Stevens'

1016 “ ... this ‘rule contradicts 2601, cion. Because 600, L.Ed.2d 643. 159 124 S.Ct. [by the Su law set forth Kennedy’s governing con the and Justice plurality The ” Seibert, see Rios v. Gar case, make together, preme Court]’ in that read currence (9th Cir.2004) cia, 1082, interroga 1084 two-step 390 F.3d clear that deliberate 362, Taylor, 529 U.S. Specif v. (quoting can violate Miranda. Williams strategy tion 1495, 405-06, deliberately withhold 146 ically, when (2000)), was “con obtaining an in-custo the state court’s decision warnings until clearly Federal confession, trary are ineffective to ... established dy law, Supreme unwarned Court prior as determined impact unless the Seibert, 28 U.S.C. dissipated. the United States.” been of confession has 2254(d)(1). 622, (Kennedy, § therefore “review 124 S.Ct. 2601 We 542 U.S. Williams, the state J., constitutionality v. of concurring); United States substantive (9th Cir.2006) (“[Jus 1148, Hazey, 533 custody novo.” Frantz v. 435 F.3d de Cir.2008) (en banc). (9th repre 724, ... Kennedy’s] narrower test tice F.3d holding.”).8 sents Seibert’s Appeals, of Court The California After determine court decision reasoned state

last warnings are ef post-confession whether claim, apply Thompson’s Miranda did fective, first assess whether courts must Rather, in Seibert. the rule announced interrogation was a deliberate two-step v. reading Oregon its of based on strategy: 1285, 298, L.Ed.2d 105 S.Ct. 470 U.S. interroga- determining whether the (1985), appellate court ruled [I]n the state deliberately withheld as the earlier tor long [unwarned

that “so warning, courts should consider whether involuntary po- due to confession] coercion, objective evidence and available subsequent voluntary, lice [a] evidence, as an officer’s subjective such warned statement is admissible.” therefore, that the assumed, testimony, support an inference state court delib- two-step interrogation procedure al- erately delayed are warn- eoer- used to undermine the Miranda ways effective absent actual case, 390, 362, ambiguity in that as in this Taylor, v. because Williams one, 1495, (2000), parlies had not raised the issue. See that the 146 L.Ed.2d 389 course here. id. We same applied under AEDPA is that “clear- law to be follow [Thompson's] ly at the time state established final," that, court conviction became and counsel logic under the of Marks 8. Williams held States, 188, 193, agreed argument that the the state at oral 97 S.Ct. v. United 430 U.S. for 990, (1977), than didn’t non-reti-oac- [a state “more raise Kenne 51 L.Ed.2d 260 Justice Seibert]; tivity objection holding [it] to reliance on dy’s is the of the Court in Seibert. test assumed its nonexistence.” The U.S. Su- v. 435 F.3d at 1157-58. Accord United States Narvaez-Gomez, preme recently Court noted “some uncertain- 973-74 Cir.2007). clearly Kennedy's ty” surrounding established rule is whether Because Justice rule, judg- holding law the date the state Seibert under Maries is assessed as of of clearly law for established Court ment conviction becomes or as of final § v. purposes 28 U.S.C. 2254. See Panetti date the relevant state-court decision. Quarterman, Spisak,-U.S.-, Smith - (2010) (2007) (applying (citing 175 L.Ed.2d Williams, splintered Court decision of the 529 U.S. at 120 S.Ct. 1495 Maries to J., (Stevens, Court) concluding that the narrowest rule "con- and id. at (O’Connor, J., Court)). purposes clearly law for stitutes established S.Ct. 1495 omitted)). Smith, however, (internal quotation § marks 2254” the Court declined to address interrogation Thompson’s became custodi- law enforcement officer Once a ing.... subjects him al before he any wrongdoing. admitted to suspect a has detained ... if interrogation rarely, By point interrogation, Thomp- there is to ever, delay giving station legitimate reason son had been sus- a warning until after the between six and seven hours. officers Instead, the most pect gone investigation has confessed. forward with their is an ille- delay involvement, reason for the plausible including talk- one, gitimate interrogator’s which is the ing to Bivins’ mother and fa- warning’s effective- him, to weaken the desire showing photo ther about officer, ness. neighbors, talking probation to his searching his home. Williams, at 1158-59. Neither 435 F.3d court nor the federal district the state By interrogation, the time of the wheth- court made a factual determination Thompson prime regarded officers as the warnings given were er the suspect. employed The officers then so- withheld,9 deliberately so we examine phisticated interrogation techniques over appeal on record before us extensive the course of more than an hour in an question.10 bearing evidence admittedly purposeful attempt “keep going” the interview and obtain incrimina- begin from the state court find We contest, ting statements.11 ing, which California does court, proceedings that there course of in that but it 9.The district court did determine outright regarding the officers that was no admission factual determination wheth- withholding warnings they warnings deliberately until er the were withheld. Moreover, fact, and that there was no evidence son confessed if viewed as a departmental policy encouraging regarding district court's statement the state practice. those determina- On the basis of clearly of the record is erroneous. As sum- tions, the district court ruled that the state text, ample there marized in evidence unreasonably apply courts did not Seibert. indicating deliberately that the officers with- clear, however, made that courts Williams confessed, until al- held circumstantial, as well as di- must consider rect, though that evidence does not include a direct withholding of warn- evidence that the by the officers. Viewed in this admission " deliberate, ings is because 'the intent of the light, there the district court's statement that " candidly rarely be ... admitted.’ officer will "any reflects the same was not evidence” (quoting at 1158-59 underlying legal just error discussed—name- (plurality opin- U.S. at 124 S.Ct. 2601 ly, understanding be a that there must ion)). "Once a law enforcement officer has outright policy to meet Sei- or admission suspect subjects and. him to interro- detained bert's deliberate intent standard. plausible gation ... reason for ... most one, delay illegitimate inter- is an which is the includes, alia, complete 10. The record inter warning's rogator's weaken the ef- desire to recordings interroga- video and audio Williams, 435 F.3d at 1159. It fectiveness." tion, confession, and reenactment and testi- legal to con- error for district court mony evidentiary hear- from the state court's policy departmental clude that the absence of ing describing the administered to outright of deliberate intent admissions morning of June off-camera on inquiry ends the under Seibert. notes, the district court also As dissent not cite to the 'd[id] "found trial, Inspector 11. On direct examination at support present any evidence in record or Conaty attorney engaged and his in the fol- inspectors that the in this case his assertion lowing colloquy: deliberately withheld their Miranda advise- Q: during why you, did the course of And [Thompson] had incriminated him- ment until " Thompson, with Mr. that initial interview Dissent at 1027. This conclusion self.’ lie to him? court constitutes an account of the the district you, right?” Additionally, isn’t that to incrimi- tell on Thompson began after Even repeatedly referred in of these tech- Officer Giaeomelli himself the face nate in Thompson’s prewarning account administer back to the officers still did not niques, Rather, only framing postwarning questions. they did so after warnings. slitting Bivins’ admitted to from this only reasonable inference throat.12 the officers interrogation sequence is withheld deliberately warnings warnings, the officers giving After a obtaining until after confession. to elicit Thompson’s prior admissions used story: him to his further detail and hold he slit Bivins’ Thompson claimed When Seibert directs proceed that we to deter- suffering, Co- prevent

throat to her from deliberately delayed mine whether him based on a naty corrected ^re-Mi- “That, to were randa warning you warnings admission: administered in him necessarily apprising survive and nonetheless effective didn’t want her to lies, subject telling withholding warnings Telling fied until after obtain- A: an interview Williams, may in fact ing them about circumstances a confession. 435 F.3d at 1159. accepted interrogative us, that, tech- be true [are] suggests In its brief before California going. niques, keeps the it interview Elstad, as in 470 U.S. at persons attempt explain Guilty will often to delay may explained here be these circumstances which in itself furthers interrogating uncertainty officers' over wheth- the interview. interrogation er the had become custodial. jjs s¡: s¡{ ^ (The testify any officers themselves did to to, admitting when to It’s human nature But, Elstad, explanation.) such unlike in reprehen- something to that is believed interrogation pre- same circumstances that act, I sible to minimize one’s conduct. If vailed at the time the state court determined up opportunity very begin- offer in the given have should been ning, subject oftentimes the interview will persisted they actually given: at the time were immediately way de- better —lack same, Thompson the location was the expound, that and scribe it—bite on will hours, many been at the station for he had not conduct, will continue to minimize his own arrested, formally and the been handcuffed or attempting place responsibility interviewing same officers were him. And persons. whatever occurred on other although shortly followed itself, just and of Q: furthers the interview. Thompson gave his most detailed account of Keeps going? the interview crime, cases, Thompson by point Actually, had al- A: Yes. in a lot of it will— attempting ready highly incriminating even minimize the con- in an made several place duct will have the defendant them- trigger any warnings. statements that did not when, fact, at a in we have Thus, selves location warnings finally given, at the time necessarily independently evidence no there was to think no reason was place them there. any more or less free to leave than Beraun-Panez, before. See United States v. place 12. The entire interview took in an inter- (9th Cir.1987) (holding 812 F.2d rogation room at the station and was video- custody turns on wheth- determination taped. delay administering So the Mi- " person 'a [the] er reasonable circum- randa was not attributable to need to stances would conclude ... that he or she unique accommodate the demands of situa- ") (quoting would not be free to leave’ United tion in the field. 315— Cf. (9th Hudgens, States v. (suggesting that officers Cir.1986) (alteration omitted)), might giving warnings have refrained from modified Cir.1987). during preliminary Any uncertainty interview in the sus- 830 F.2d 127 pect’s living causing room to avoid alarm to custody regarding whether mother). suspect’s explain delay complying would not respect exception- Nor is this in other with Miranda. justi- "legitimate al in which a case reason”

1019 tactic, post- that deliberate employed 2601 at S.Ct. rights. 542 U.S. Williams, be admitted ab- J., concurring); see Miranda confession should (Kennedy, Indeed, summarized at 1160. Williams sent curative measures.14 Justice 435 F.3d joined opinion to this determination: Breyer, plurality factors relevant who full, was of the view that the fruits of (1) of the and detail completeness (2) two-step strategy always should deliberate the over- interrogation, prewarning Seibert, 542 U.S. at suppressed. be rounds of of the two lapping content (3) 124 S.Ct. 2601. and circum- timing interrogation, (4) interrogations, of both stances need not decide this case We (5) the personnel, continuity police of relationship among Williams precise interrogator’s ques- to which the extent Here, in fa- every weighs factors. factor round of inter- tions treated the second suppression vor of first first and continuous with the rogation as postwarning confession. (6) measures were any whether curative prewarning interrogation was The taken. detailed; highly confrontational and Seibert, Id.; 542 U.S. see also place took in the same small two sessions 622, 124 op.); id. at (plurality S.Ct. room, back-to-back, with no interrogation J., concurring). (Kennedy, all; police personnel were break. failure of law enforcement to same; and, above, as exactly the described may dispos measures take curative questioning officers’ treated the two into the effectiveness of inquiry itive of the drew, in sessions as continuous and one Kennedy warnings. Justice delayed instance, Thompson’s pre-Miranda concurring opinion that rule in his adopted during statement the second session to interrogator an uses in Seibert: “When inculpatory that the earlier materi ensure deliberate, strategy, predi two-step requisite after the warn al was reiterated upon violating during cated ings given. And the took no interview, postwarning state extended The post- curative measures whatsoever. related to the substance of ments are warnings could not confession Miranda must be excluded prewarning statements meaningfully appris have been effective in steps.”13 specific, absent curative ing Thompson rights enabling of his (Kennedy, him to invoke them. J., concurring); see also United States v. warnings, ad The second set Reyes-Bosque, jail, morning ministered the next at the Cir.2010) (so characterizing holding (Jun. of the filed, videotaped before the reenactment Seibert), petition for cert. cert, Still, 2010) (No. 10-5140) crime, presents question. closer petition 2010) (No. 10-5718). consideration, (Jul. filed, after careful we are con And vinced that all of the factors continue to nothing opinion suggested in the plurality that, point it is have to the conclusion too once determined J., (Kennedy, Kennedy suggested in Seibert that 124 S.Ct. 2601 concur- 13. Justice "a break in time and circum- ring). substantial may qualify as a curative measure stances” deliberately that restores the effectiveness of a plurality opinion did not 14. Because the warning, "designed delayed if the break is hinge withholding on a of deliberate person in the sus- ensure that reasonable plurality warnings, the in the Justices import pect's understand the situation would question. no occasion to address the warning.” the Miranda Id. at and effect of bed, Thompson and detail blankets or a was too cold completeness ineffective. The sleep. remained prewarning interrogation of the first, inef- unchanged from the time there, at the main detention facil It was fective, warnings. anything, Thompson If ity, Inspectors Conaty that and Giacomelli his perceived have the invocation of

would warnings administered the second set of futile the next morn- rights as even more morning. Thompson spent thus the next ing, having in the interim confessed to ‘unfamiliar,’ night ‘po in an the “isolated shown the in- murder a second time and Miranda, atmosphere,’ lice-dominated spectors early morning the hours after 1602], [at —in where late-night interroga- of the completion the fate,’ ‘appeared] to control captors [his] place tion at the where he station —the Perkins, 292, 297, Illinois dispose tried to of the evidence. In addi- [(1990)].” 2394, 110 Ma — tion, in complete overlap there was almost Shatzer, U.S.-, ryland v. — - Thompson’s two con- (2010).

content between first 1213, 1220-21, L.Ed.2d and the reenactment he was to fessions circumstances, Under the the short break day. conduct at Bivins’ house later that change in time and minor in location did Indeed, consistently inspectors treated provide opportunity for “further in surroundings,” the reenactment as continuous with deliberation familial' see weigh at do not in of previous night’s interrogation, making id. and favor effective. Thompson allowing before him to clear go sleep night before he would Moreover, complete continuity there was participate need to in the reenactment the police personnel during of the first confes- day15 telling immediately next him sion, warning, the first the second confes- reenactment, before the gonna “[A]ll we’re sion, warning. and the second Just as was yesterday, go do is what we talked about before, night so Thompson was alone through happened.” what Inspectors Conaty with and Giaeomelli in a jailhouse room he when received these timing

The and circumstances of the warnings. peo- Faced with the same two warnings, particularly second set of confessed, ple repeatedly to whom he had location, change break time and Thompson would have found absurd the knowing somewhat more conducive to a suggestion meaningful that he retained a intelligent than in waiver the case of right to “remain silent.” balance, warnings. the first But on factor support does not the conclusion that Finally, inspectors failed once more were effective either. At the to take all. Par- curative measures at previous night’s conclusion of the interro- ticularly in- already a.m., gation at around 2:00 ac- criminated himself in several unwarned companied to search for the improperly warned interactions with the weapon clothing. murder and his bloodied inspectors, it upon was incumbent them to Afterwards, suicidal, distraught still give warning “an additional ex- spent night rest shackled to plained] likely inadmissibility the floor of suicide-watch room the prewarning custodial Sei- statement^].” (Ken- bert, main facility detention Martinez. J., nedy, concurring). Stripped deprived to his underwear and Inspector Conaty Thompson’s to the main detention testified that he and transfer agreement” "during facility night “reached an for the would prior participate the course of the interview” and in the reenactment. circumstances, opportunity. motive and we based on all these light In incul- concluding on de novo erroneous admission of difficulty have little clearly prejudicial. two- statements was patory the officers’ deliberate review strategy rendered inef- interrogation step warnings adminis- the Miranda

fective III. The admission Thompson.16 tered affirming Thomp the admission of trial inculpatory statements confessions, the Court of son’s California unless harmless. error was reversible applied contrary a rule to that Appeals announced Court Mis C. Seibert, 600, 124 v. 542 U.S. S.Ct. souri of a admission “[erroneous Because the (2004). 2601, novo On de not constitute structural confession does review, that police we conclude officers’ 1162, Williams, error,” such F.3d withholding of Miranda warn deliberate harmless on review admission is collateral ings Thompson until after confessed ren injurious unless it had substantial dered the belated ineffective. determining influence in effect or the introduction at trial of Because Abrahamson, v. verdict. Brecht jury’s Thompson’s confession was both constitu S.Ct. 507 U.S. tionally highly prejudicial, infirm and we (1993). confession, A howev L.Ed.2d 353 the district court’s denial of reverse er, ordinarily persuasive the most evi for a writ of habeas Thompson’s petition against a that can be admitted dence corpus. v. Ful See Arizona criminal defendant. minante, 279, 296, 111 REVERSED. 499 U.S. (1991). L.Ed.2d 302 When IKUTA, dissenting: full confession that “dis Judge, considers a Circuit

jury for and means of closes the motive Antwion voluntari- Petitioner crime,” high probability that there is a ly murdering girlfriend. confessed alone in jury rely on that evidence will day police He confessed at the station Fulminante, 499 reaching its decision. committed, again the murder was 296, 111 1246. Admission of the crime on day next when he reenacted harmless. will seldom be such confessions house. at the victim’s videotape Williams, 435 F.3d at 1162. occasions, these two On rights and volun- Here, of his Miranda Thompson’s confession was advised rights. Though these tarily waived those case. The prosecution’s the heart of the by a preceded confessions were recordings Thomp warned jury watched video there is period questioning, of unwarned and of his vivid thorough son’s confession . them from the legal no basis to exclude brutal crime. While reenactment of the jury’s consideration here. See Missouri suggested trial evidence at other Bivins, kill no a motive to Thompson had (2004); Oregon v. him the killer. L.Ed.2d 643 identified as

other evidence confession, prosecution Without (1985). case, from the respectfully I dissent at best a weak circumstantial bert, 124 S.Ct. 2601 542 U.S. at 617 n. Thompson’s alternative

16. We do not reach (“Because warnings were right we find that the to re- argument that his waiver of his inadequate, need to assess the there is no voluntary because it was was not main silent statement.”). overreaching. actual voluntariness of product See Sei- grant Thompson’s tioning. questioners Id. His were not in majority’s decision uniform and did not guns. habeas writ. have Id.

Though the interview room was small and I closed, it the door was was not locked. Id. cold, When said the room was review, the facts On federal habeas inspector turned on the heater. Id. presumed are found the state court correct, petitioner can over- unless At the questioning, Thompson outset of presumption come the correctness complained inspec- of a headache. Id. The “ convincing clear and evidence. 28 U.S.C. him, you tor asked ‘Do doing— feel like 2254(e)(1) (2006). Here, Thompson § does can you we do this now or would rather do challenge the state court’s factual find- you ... ifgo this another time? You can ” ings, adopt and therefore we must those don’t want to do it now.’ Id. “ ” findings reviewing Thompson’s true in as replied, go through “We can it.’ Id. The rule, Despite majority opin- writ. inspectors questioned Thompson then ion sets forth an account of the facts in a period providing extended without Mi- manner favors appeal. randa warnings. Id. Over the course of Accordingly, necessary to recount questioning, Thompson admitted that he key some factual of the state court’s find- at immediately had been the victim’s house ings below. before he asked his him father to take there and that he had

Thompson agreed go inspectors stabbed the victim with an during argument accident in which to the station to discuss his role in the victim him body. came at while he was hold- People the victim’s v. A099879, 3, ing Subsequently, inspectors knife. Id. Thompson, slip op. No. at 2004 2004). Feb.3, Thompson informed rights, of his Miranda (Cal.Ct.App. WL 198349 there, repeated Once his earlier admis- approximately he waited six court, sions. Id. According hours in the to the state police break-room before be- videotape the ing questioned. “[t]he [of at indicates interview] Id. 3-4. careful, inspectors pat-searched polite, was neither handcuffed nor soft-spoken, not during period. overbearing. Id. at 3. The Noth- break ing videotape on the room had a couch and a indicates that television. Id. son did not rights The door to the break understand his or was open. room was Id. speak reluctant to inspectors.” at 8. Id. was told to relax and television, at 14. watch he did. which Id. 3. Thompson spent most of the six hours a.m., At about 2:00 led in- sleeping on the couch. Id. at 3-4. He spectors to locations where he had dis- leave, cold, never asked to said he was posed weapon of the murder and burned water, asked for food or or made other his at 4. Thompson clothes. Id. also 3-4,

requests. Id. at 9. agreed to in a participate videotaped reen- get came Thompson,

When actment of the “Al- victim’s death. Id. they apologized keeping him waiting though Thompson spent a cold and uncom- they and asked if speak could with him in night county jail following fortable Thompson agreed another room. Id. at 4. the interrogation, again he was fed and “ ” feeling ‘okay.’ and said he was Id. He rights doing advised of his Miranda before did not indicate that he to leave or wanted the reenactment.” Id. at 15. The reenact- speak police. he did not want to with ment p.m., commenced about 12:47 Id. He during ques- day handcuffed after the murder. Id. at 4.

1023 by the Court at Supreme II set forth time the state court renders its decision.” ha- Thompson filed his federal Because Andrade, 123 538 24, 1996, April peti- petition after beas by the Antiterrorism tion is governed Penalty 1996 Act of Effective Death relevant state court determination (2006). § (AEDPA), See 28 U.S.C. 2254 of AEDPA review is last purposes 204, Garceau, 538 U.S. v. Woodford state court See Ylst v. reasoned decision. (2003); 1398, 155 L.Ed.2d 363 123 S.Ct. Nunnemaker, 797, 804-06, 501 111 (9th Blodgett, 393 F.3d Lambert v. (1991); Riggs L.Ed.2d Cir.2004). court AEDPA, a federal Under Fairman, Cir. v. respect relief deny must habeas with 2005). Here, 3, February deci- in a merits adjudicated claim appellate court is the sion of state last proceed- unless the proceeding state court adjudication reasoned Mi- a decision that was con- ing “resulted time, Supreme claim. At randa to, ap- trary involved unreasonable yet decided Missouri v. Court of, clearly Federal plication established 542 U.S. law, Supreme Court as determined (2004). Accordingly, L.Ed.2d under in a or “resulted United States” AEDPA, clearly established decision that was based on an unreason- precedent applicable Court light able determination facts Oregon claim is court presented the evidence the State (1985). 84 L.Ed.2d 2254(d)(l)-(2). § proceeding.” “Section 2254(d)(l)’s ‘clearly majority prin- ‘re- this phrase ignore established’ The chooses to that, ground appeal, as to the the holdings, opposed ciple fers the on on the dicta, government argue decisions as of the did Seibert was of Court’s th[e] ” Maj. op. time decision.’ under AEDPA.1 at inapplicable of the relevant state-court does, Andrade, 71, 63, But Lockyer change 538 123 1015-16 n.7. v. U.S. (2003) 2254(d)(l)’s 1166, (quot- statutory § L.Ed.2d 144 mandate the S.Ct. 155 362, 412, grant court cannot habeas relief ing Taylor, v. 529 U.S. federal Williams (2000)); 1495, contrary 120 146 unless the state court’s decision is S.Ct. L.Ed.2d 389 74, Musladin, 70, clearly of Carey application accord v. 549 U.S. to or unreasonable (2006); 649, Supreme precedent, 127 166 S.Ct. L.Ed.2d 482 established Court Alvarado, 652, Supreme v. defines as “the Yarborough 541 U.S. which Court 660-61, legal principles governing principle 124 S.Ct. 158 L.Ed.2d 938 or set (2004). words, ‘clearly Supreme estab- at the time “In other forth Court 2254(d)(1) § law1 under court its decision.” An- lished Federal the state renders drade, 71-72, U.S. at 123 S.Ct. governing legal principle principles 538 1166 simpler: Thompson arguing was not the issue is 1. Instead of that Seibert sis of much Supreme prece- “clearly Court fairly present- established” claim exhausted his because dent claim under relevant post- admissibility his ed the issue of AEDPA, government argued that highest warned statements to the state’s the state son to exhaust His claim that failed court, Supreme and even cited to the Court's with Seibert. court's decision inconsistent peti- then-pending in Seibert in decision majority lengthy The discus- offers rather supreme for review the state tion before argu- sion whether Seibert view, my In this was sufficient to court. properly Blair v. ment was exhausted under satisfy requirement. See John- exhaustion Cir.1965). California, 340 F.2d 745 Zenon, (9th Cir.1996). v. son My analy- Maj. op. & at 1013-16 1014-15 n.6. added); (emphasis see also Murdoch v. A (9th Cir.2010) Castro, F.3d suspect In incriminating made (en banc) (“The Supreme has re Court statements to a police officer at his home ‘clearly stricted established Federal law’ receiving without first warnings. 2254(d)(1) § holdings, op under to ‘the as 300-01, at 105 S.Ct. 1285. Offi- dicta, to the posed Supreme] of [the cers thereafter took the suspect office, county Court’s decisions as the time sheriffs read him his Mi- ” rights, randa and obtained a (emphasis relevant state-court decision.’ confession added) Musladin, expanding on inculpatory his earlier state- (quoting 549 U.S. 301-02, ments. 649) (internal Id. 105 S.Ct. 1285. quotation marks court, suspect argued post- that the omitted)). Although may deny peti we warning statement should be suppressed light tioner’s writ in Court Supreme because it likely un- induced date, precedent decided after the relevant — warned statement. Id. ——, v. Spisak, see Smith Supreme granted Court certio- 676, 680-81, (2010); rari to question “consider the whether the Minnesota, 264, 288, Danforth Self-Incrimination Clause of the Fifth requires suppression Amendment of a (2008), Supreme Court has never held confession, proper made after that a reviewing may ignore court warnings and a valid waiver of rights, sole- 2254(d) statutory § grant command of ly because the had obtained an earli- habeas relief when the state court’s deci voluntary er but unwarned admission from sion was consistent with then-applicable the defendant.” Id. at 105 S.Ct. 1285. Supreme precedent. Court that, The Court determined in such Here, Elstad, than rather is the cases, suppression was not required. It clearly established prece- Court that, explained prohibited by “far from (as AEDPA, dent under described be- Constitution, guilt by wrong- admissions of low) the state court’s decision was not doers, coerced, if not inherently are desir- contrary to or an application unreasonable 305, able.” at Id. 105 (quoting S.Ct. 1285 Therefore, of Elstad. majority errs in Washington, 181, United States v. applying “clearly Seibert as established 187, 1814, (1977)). 97 S.Ct. Federal law” relevant to our AEDPA re- Because the Fifth “prohibits Amendment claim, view of Thompson’s consequently in prosecution use in in its case chief holding that the state court’s decision was only of compelled testimony,” Miranda Seibert, contrary to and in thereafter re- require does not subsequent that state- viewing the Thompson’s petition merits of given ments after unwarned statements be de novo. inherently “discarded as tainted.” Id. at

306-07, Instead, 105 S.Ct. 1285. the Court held admissibility that “the subse- Ill quent solely statement should turn ... whether knowingly voluntarily is review, Even under however, de novo 309, made.” Id. at 105 S.Ct. 1285. the state court’s denial of Mi- randa claim did not violate In ruling, rejected so the Court the state rights constitutional under “[ajfter Seibert or El- reasoning that, court’s an accused stad, as review of those two cases demon- has once let the cat out of the bag by strates. confessing, no matter what the induce-

1025 suppression hearing, police officer ment, free of the is never thereafter he a “testified that he made ‘conscious deci- disadvantages practical psychological 311, warnings, thus sion’ withhold Miranda at S.Ct. having confessed.” Id. omitted) (internal resorting interrogation technique an quotation marks first, question give then taught: had been Bayer, United States (quoting repeat question and then warnings, L.Ed. 1654 the S.Ct. already (1947)). get ‘until I the answer that she’s justification is little Because there ” 605-06, 124 Id. at provided once.’ probative evi- highly “permitting to be irre- voluntary of a confession dence factfinder,” id. at

trievably lost to the plurality concurring opinion, In a ruled a the Court that 105 S.Ct. justices five held this situation of Miranda “subsequent administration distinguishable from id. at Elstad. See given a suspect to a who has 614-17, 2601 (plurality opinion); voluntary but statement ordi- unwarned J., (Kennedy, id. S.Ct. 2601 to remove condi- narily should suffice judgment). in the As reasoned concurring earli- precluded tions admission Kennedy’s controlling Justice concur- statement,” id. at 105 S.Ct. 1285. er rence,2 although Elstad “was correct in its words, is no warrant for In other “there reasoning and its result” and “reflects presuming effect where the sus- coercive pragmatic approach balanced and to en- statement, though pect’s inculpatory initial warning,” the forcement of the Miranda Miranda, technically violation of “two-step questioning technique use of a voluntary. inquiry The wheth- relevant Mi- based on a deliberate violation of fact, er, statement was also second than that randa” raises a different issue 318, 105 voluntarily made.” Id. at in Elstad. Id. at considered omitted). (footnote two-step 2601. Because such deliberate technique of Mi- meaning “distorts out Court carved an ex- legitimate counter- randa and farthers no rule ception general to Elstad’s Seibert. interest,” Kennedy rea- vailing Justice There, police “a pro- the Court considered soned that Miranda rule would “[t]he interrogation for custodial tocol to allow [the courts] frustrated giving no callfed] meaning to undermine its and effect” until to silence and interro- rights counsel strategy. employing such Id. gation produced has a confession.” 542 Kennedy S.Ct. 2601. Justice concluded 604, 124 S.Ct. 2601. interrogator delib- “[w]hen [a] uses suspected of mur- arrested woman erate, strategy, upon two-step predicated mentally teenager living a ill in her dering in- violating during Miranda an extended providing See id. Before her with home. terview, that are postwarning statements warnings, aggressively an officer prewarning related the substance of to forty her for questioned thirty minutes. spe- statements must be excluded absent 604-05, 124 at S.Ct. 2601. After she Id. cific, steps.” curative Id. confessed, police gave the her Miranda Seibert, “two-step her with her un- Under a deliberate warnings, confronted statements, in- strategy” implementation is the of an warned and extracted second un- questioning at an procedure Id. 124 S.Ct. 2601. At tentional confession. Williams, (citing Kennedy. Id. at Justice 1157-58 2. In United States v. F.3d 1148 States, 188, 193, Cir.2006), (9th interpreted holding we Marks the v. United (1977)). by to be the one reached S.Ct. 51 L.Ed.2d Seibert narrower obtaining suspect, incriminating made,” warned postwarning statement is and be statements, suspect then giving and the “designed to ensure a reasonable obtaining before person in the suspect’s situation would incriminating or same related statements. the import understand and effect of the 620-21, 124 at 2601. In See id. Unit Miranda warning and of the Miranda Williams, ed 435 F.3d 1148 States at waiver.” Id. 124 S.Ct. 2601. Suf- Cir.2006), we elaborated what consti ficient curative measures include “a sub- strategy tutes deliberate under Seibert. stantial break time and circumstances that, “in determining Id. at 1158. heldWe between the prewarning statement and interrogator deliberately whether the with the Miranda warning” “an additional warning, held Miranda courts should warning explains likely inadmissi- objective consider whether evidence and bility prewarning custodial state- subjective sup available evidence ... ment.” Id. port two-step inference that the interro Because a court must find deliberate- gation procedure was used to undermine ness and the absence of curative measures Objective warning.” the Miranda Id. evi excluding statements, before postwarning may timing, setting dence include “the and narrowly Seibert operates suppress completeness prewarning interroga postwarning “only confession in the infre- tion, continuity police personnel and quent case.” Id. But even if Seibert overlapping content of pre- and inapplicable, the Supreme Court has ad- statements,” postwarning at id. while admissibility vised that postwarn- “[t]he subjective may evidence include an offi ing gov- statements should continue to testimony two-step cer’s that the method erned principles Elstad” customary protocol, under police id. at that the proceed court must therefore Seibert, In example, police analyzing under post- Elstad whether the interrogation strategy was deliberate be warning involuntary confession was or in- suspect cause the was under arrest at the by police duced coercion. Id. time the unwarned statements were made (and suspect therefore it was clear that the

should have received Miranda B of questioning), start see 542 review, Even de under novo 604-05, 124 2601 (plurality opinion), postwarning confession and reenact- video and the interrogating officer testified ment were admissible under both Seibert police first, protocol “question because the were not give then warnings, repeat and then deliberate in employing two-step interro- the question” until the same answer is gation strategy, the video reenactment fol- given, 2601; id. at id. measures, adequate lowed curative 620-21, 124 J., (Kennedy, S.Ct. 2601 con post-warning voluntary statements were curring in judgment). and not induced coercion. Kennedy Justice provid- also above, As explanation applies only ed more of noted Seibert if “specific, the cura- steps” engaged tive the in a two-step that eliminate the need to ex- deliberate postwarning interrogation strategy. clude Id. statements that are the On federal ha- product deliberate, review, of police’s the beas the court two-step district found that (Ken- strategy. Thompson’s Id. at 124 post-warning S.Ct. 2601 confession was J., nedy, concurring in the judgment). product not the of a two-step deliberate steps Such must be “taken strategy, thereby before the the ending analy- Seibert dard, Thomp- evaluating that the circumstances of court noted The district sis. standard, Thompson’s the claim within that not at the time of was under arrest son that ultimately determining and deliber- and there was no testi- questioning, initial present. op. not See Dct. ateness was inspectors deliberately with- mony that the Indeed, n.& 4. the district court 20-22 warnings until after Miranda held necessarily finding had to make a factual Rather, court the district son confessed. deliberateness; otherwise, it not on could “not to the that did cite found have claim. resolved Seibert present support or evidence record inspectors his assertion that the in this of Perhaps recognizing shaky that it is on deliberately their case withheld majority in a footnote ground, the adds had incrimi- [Thompson] advisement until finding the district court’s factual was himself,” “no and that there was nated actually error. legal According concerning in the record an offi- evidence majority, failed weigh the district court deliberately of withhold- police policy cial properly sug- the circumstantial evidence suspect until a ing gesting police’s two-step that the interro- Dct. at 21. op. confessed.” ha[d] gation Maj. op. method was deliberate. majority 1017 n.9. The it concludes the issue It is well established “legal error the district court deliberately acting were whether departmental conclude that the absence of appropriately “is reviewed under Seibert or of policy outright admissions deliberate finding a factual for clear error.” See as inquiry intent under ends Seibert.” Narvaez-Gomez, F.3d States v. United Maj. op. at n.9. (9th Cir.2007). To overturn error, “a for clear factual determination reasoning wrong This is both as a mat- just strike us more than decision must First, of law and fact. it is from ter clear wrong; or it ... maybe probably must that the court its decision district did with force a five- wrong us as strike the legal majority make error the attrib- week-old, fish.” unrefrigerated dead it. utes to The decision shows that Bussell, F.3d United States objective district court aware (9th Cir.2007) (alteration (inter- original) subjective components deliber- omitted). quotation nal marks inquiry, quoting ateness even relevant it stating portion “ Williams dis- properly analyzing Instead of any objective ‘should consider evidence finding under trict court’s deliberateness subjective expressions available in- or standard, stringent effec- majority this suggesting tent that the officer acted de- tively factual overrules district court’s liberately to undermine obscure its finding replaces appel- with own ” warning’s meaning and op. effect.’ Dct. finding. majority begins late factual Williams, 1160). 435 F.3d at (quoting by inexplicably asserting that the district proper govern- recitation of the Given finding never made a court deliberateness law, ing majority wrong is to state that (“[T]he Maj. op. at at all. federal applied improper the district court le- district court made factual deter- [never] gal standard to claim. mination given whether Second, deliberately Thompson with- it is clear that the district court ”). .... a factual on the deliberate- held Such assertion belied made decision, engages which ness issue: it found that “d[id] the district court’s present any cite to record evi- lengthy in a rather discussion deliber- ateness, in of the setting support forth the relevant stan- dence his assertion that

inspectors deliberately in this case with- not and cannot proceed to resolve the dis- puted factual held their Miranda advisement until issue itself. See id. [Thompson] had incriminated himself.” sum, majority the prefers infer- the 21. claim op. majority’s Dct. that ences it from draws the evidence to those is factual finding this statement not a but court, drawn the district and therefore proceedings account the course of in “an of that concludes either the court district majority may that court” is untenable: the legal made a error or fact finding its disagree with the district court’s decision clearly erroneous. is far the This from weigh the circumstantial not evidence proper standard for overturning a factual but there is heavily, more no reasonable determination for clear error. See Bus- denying that basis district court sell, Reviewing 504 F.3d at 962. the mat- a a finding. made factual When district error, ter properly for clear there noth- is court rules that there is no in evidence ing suggest that the district court specific point, making record a is a in clearly finding erred that finding, describing factual the state of prove inspectors that failed deliber- the record. ately warning withheld the Miranda until incriminated himself. As readily apparent Because it is that the such, apply Seibert does not district court in evaluated evidence claim, son’s see 542 U.S. at fact, finding record and made a of J., (Kennedy, concurring majority yet theory, tries a third claiming judgment), majority errs event, in any the district court’s find concluding otherwise. clearly ing was majority erroneous. The Furthermore, bases this on the conclusion inferences it as the district court and draws from the same facts every considered state court to have considered the ruled, district court. has acknowledging While issue no of there is direct evidence a and postwarning delib waiver statements policy, majority puts voluntary erate its own and admissible under Elstad. See, gloss police’s interrogation Polanco, on the strategy e.g., United States v. (9th Cir.1996) only and declares that (quoting “[t]he reasonable 1285). interrogation inference from [the] se U.S. at ‘Voluntari- quence is that deliberately totality the officers ness in- the circumstances withheld quiry until after ob that assesses both the characteristics taining Maj. op. confession.” accused and the details of the inter- Williams, type appellate This fact rogation.” is an F.3d n. at 1153 5 (internal omitted). impermissible judicial extension of quotation our marks As See, McNary e.g., role. v. Haitian the state court’s description the facts Refu Ctr., Inc., gee indicates, supra pages the overall (1991) (observing Thompson’s interrogation environment of appellate relatively federal court unintimidating nonop- “lack[s] the was factfinding capabili pressive, and record-developing Thompson’s questioners did court”). of a ties federal district If promises exchange the make threats confession, legal district court undisputed committed error its and it is not, analysis, deliberateness which it questioners eventually did informed majority should remand to the rights district of his Miranda and that court inquiry to reconsider the factual un Thompson rights waived those and contin- der the It proper legal incriminating standard. ued to make should statements. in cannot to render the confession apply there is no Thus, under Elstad See post- the reenactment video inadmissible. Thompson’s to exclude legal basis such, As the must be id. video admissible warning confession. Elstad, id., involuntary under unless it was C that not does argument appeal. make in this court’s assuming that the district Even clearly errone- was deliberateness majority’s dismissal of the curative ous, that could find deliberateness and we initial steps between taken appeal, would first time on Seibert for the next-day and the reenactment questioning apply exclude next- not to still giv- was Though is erroneous. crime, of be- the day video reenactment of en a second set Miranda were curative measures cause sufficient reenactment, majority morning of the reenactment confes- before the video taken inef- that this was speculates advisement Seibert, 542 U.S. at was made. See sion “Thompson have fective because would J., concur- (Kennedy, 124 S.Ct. 2601 of his as perceived rights the invocation (“If deliberate ring judgment) [a] in Maj. morning.” futile next even more used, post- has two-step strategy been And, reen- op. though at 1020. video that related to the warning statements are significant actment occurred after a break must prewarning of statements substance location, change majori- in in time and measures are excluded unless curative curative ty surmises these measures statement is postwarning before the taken were insufficient because made.”). jail bed deprived of a blanket and Maj. 1020. sleep.” op. “was too cold to at described The exact curative measures present were satisfactory Seibert as conjectures down reliance These boil here, namely, break time “a substantial theory,” of is bag on the “cat out which prewarn- between the and circumstances say the initial Miranda violation warning.” ing statement and Miranda at dis- put Thompson psychological such interrogation Thompson’s unwarned Id. any must advantage that later confession p.m., around 11:00 video began regardless any curative be excluded until the next did not start reenactment steps subsequently taken. See p.m. at 12:45 In the interim day around 1394. Bayer, 331 U.S. slept Thompson was fed and period, But, above, as described county jail. morning, in the In the night rejected explicitly theory in El- Court from the center relocating before detention stad, that, held with wherein Court house, he to the victim’s was readvised respect admissibility postwarning He told that he rights. his statements, pre- “there no warrant for participate not have to in the reenact- did suspect’s suming coercive effect where the ment, against be used him could statement, tech- inculpatory though initial court, attorney and that he could have his Miranda, nically in violation of was volun- read time. his present tary.” aloud, rights stated that he understood that, subsequent confirm in the Our cases them, willingness par- and indicated bag’ wake “the ‘cat out of the in the reenactment. ticipate theory apply where confession does voluntarily made, in is under circumstances Because there was substantial break warning, subse- place requiring the unwarned time between reenactment, a technical Miranda violation.” quent Seibert statement and Tawfeq Fleming, Saleh v. respect, F.3d trial. With I dissent (9th Cir.2008) (citing majority’s grant 551-52 Medeiros v. from the decision to Shimoda, 823-24 Cir. habeas writ.

1989)). rejection majority’s of the effect substantial

curative break in

time location between the unwarned

statements and video reenactment is thus

contrary to both Court Supreme and Ninth precedent.

Circuit

Because the video reenactment is admis- under sible Elstad and error Harvey HEISHMAN, III, Lee admitting postwarning confession Petitioner-Appellant, Abrahamson, was harmless. See Brecht v. 619, 637-38, (1993) (holding that a Mi- AYERS, Robert L. for California randa violation is reviewed for harmless Quentin, State Prison San error). reenactment, In the video Respondent-Appellee. only in great son confessed detail to No. 07-99016. murder, police step by but showed step how committed the crime. His earlier Appeals, United States Court of postwarning confession was therefore cu- Ninth Circuit. reenactment, mulative and its ad- mission, erroneous, even if had no “sub- Argued and Submitted June 2010. injurious stantial effect or influence Sept. Filed determining jury’s verdict.” Id. at (internal 623, 113 quotation S.Ct. 1710 omitted).

marks

IV

Thompson numerous times admitted to girlfriend. he murdered his

The two confessions at issue in appeal given

were proper Miranda warn- both,

ings. Thompson gave detailed

descriptions act, of the criminal and in one

Thompson is seen on reenacting video

murder the scene of the

crime. issue Reviewing properly un- AEDPA,

der the state court’s decision that

these confessions were admissible was not

contrary to or an application unreasonable clearly Court’s established

holding in Elstad. Even reviewing the de

issue novo under Ninth Circuit and

Supreme Court precedent, both of these

confessions properly admitted at

Case Details

Case Name: Thompson v. Runnel

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Sep 8, 2010

Citation: 621 F.3d 1007

Docket Number: 08-16186

Court Abbreviation: 9th Cir.